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The recent Supreme Court decision in Stanford v. Roche laid bare a faulty assumption of the federal research funding system. Government patent policy for federally funded research relies on “contractors” — the recipients of federal funding — to secure patent assignments from their employees. While this practice was routine for private firms and nonprofit research institutions, it was not for universities. This was in part based on the relationship of faculty and other researchers to universities that differed from industry employment relationships. The roots of this faulty assumption can be traced to the seminal 1947 Biddle Report. Detailed monographs drafted as appendices to the Biddle Report made plain these different practices. Yet the formal report glossed over the differences in favor of a summary that government research patent policy need only concern the relationship between the funding agencies and contractors. This left assignments between the contractors and their employees to the contractors. Despite regulations up through the Bayh-Dole Act of 1980 that obliquely referenced the obligation of contractors to secure adequate rights to protect the government’s interests, universities never adopted the assignment practices of private industry. This Article traces the roots of this issue from the Biddle Report to the current government regulations in order to clarify challenges that funding agencies and universities face in securing adequate agreements from researchers in the wake of Stanford v. Roche.

An earlier version of this paper was posted with the title “Mistaken Assumptions: The Roots of Stanford v. Roche in Post-War Government Patent Policy.”